EFFECTIVE MEASURES TO PREVENT AND COM BAT
CORRUPTION AND TO ENCOURAGE COOPERATION BETWEEN
THE PUBLIC AND PRIVATE SECTORS
Abraham Nikolous Ihalua
I. INTRODUCTION
Namibia s anti-corruption legislation dates back prior to its independence in 1990 and Namibia has
put in place legal measures to fight corruption. The Prevention of Corruption Ordinance, 1928 (Ordi-
nance No.2 of 1928),was enacted to better prevent corruption and it came into force on 12 June 1928.
The Prevention of Corruption Ordinance,1928,was enforced by the Police. In addition,the Namibian
Parliament thought it fit to pass the Ombudsman Act, 1990 (Act No. 7 of 1990), that established the
Ombudsman and empowered the Ombudsman to, among others, investigate corruption.
The Namibian Constitution provided for the establishment of the Anti-Corruption Commission
under Article 94 A and the Prevention of Corruption Ordinance, 1928 was repealed by the Anti-
Corruption Act,2003(Act No.8 of 2003),that was promulgated and signed by the President in 2003 and
became operative on 15 April 2005.
The Anti-Corruption Commission (hereafter referred as the ACC)is an Agency in the Public Service
of Namibia as contemplated in the Public Service Act 13 of 1995.The ACC is headed by a Director who
is assisted bya DeputyDirector.Both the Director and DeputyDirector are nominated byPresident and
appointed by the National Assembly.Both the Director and Deputy Director have experience of legal
practice as attorneys.
The ACC is an independent and impartial body,an agency within the Public Service as outlined in
the Public Service Act of 1995. The Anti-Corruption Act gives the power to investigate corruption,
combat and prevent corruption.The Director appoints investigating officers,staff of Public Education
and Corruption Prevention and other Administrative and Auxiliary staff. The Anti-Corruption Act 8
of 2003 provides for the administrative and legislative measures to prevent and combat corruption.
In its fight against corruption the Commission embraces a three-pronged approach of law enforce-
ment,prevention and public education. Our success in the fight against corruption is dependent on high
ethical standards being maintained in all dealings and the reporting of corruption to the Commission
whenever it occurs.The investigative power is vested in the Investigation and Prosecution Directorate
while Public Education and Corruption Prevention are vested in the Public Education and Corruption
Prevention Directorate. The Anti-Corruption Act gives the power to investigate corruption, combat
and prevent corruption.
II. INVESTIGATION
The Commission receives allegations of corruption orally or in writing from whistle-blowers
whether in public sector or private sector.Some whistle-blowers prefer to report anonymously or give
an indication that their identities should be protected or may be disclosed.The information is normally
provided via telephone,e-mail,in writing or in person to the Commission.On its part the Commission
must analyse the allegation to determine if reasonable grounds exist to investigate the matter,and if
it cannot, the matter will be refered to the relevant authorities such as the police, other government
ministries, and stakeholders.
Senior Investigating Officer, Anti-Corruption Commission, Namibia http://www.accnamibia.org>.
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The Commission may also initiate investigations. (Anti-Corruption Act, section 18). The Commis-
sion after analysing the matter may also decline to investigate if it is satisfied that the matter does not
have substance, or not fall within its mandate,however referrals are made in such cases as well.The
Commission may also initiate an investigation on its own motion as mentioned earlier(Anti-Corruption
Act no. 8 of 2003, section 18), therefore it is not only reactive, but proactive as well.
Investigative powers are provided such as the power to arrest any person with or without a warrant
who is suspected of having committed or is about to commit an offence under the Act. The person
arrested must be taken to the police station to be dealt with in accordance with the Criminal Procedure
Act.There are also powers to enter and search premises with a warrant and powers to seize proceeds
of corruption.The investigating officers do not have the power to serve summons on person to appear
before court either as witnesses or suspects,the power to take finger prints of suspects and the power
to formally charge suspects before they appear in court.These are all done by the Namibian Police in
accordance with Criminal Procedure Act, Act 51 of 1977.
III. PROSECUTION
The prosecution power of corruption cases is vested in the Prosecutor-General. Once the Commis-
sion has concluded an investigation into alleged corruption,it forwards the case files to the Prosecutor-
General to analyse the information and to decide if prosecution is warranted or not. In such matters
where the Prosecutor General decides to prosecute, the case file will be send back to the Commission
with instructions to bring the accused before court by giving them summons which are in actual fact
served on accused by the Police. In the contrary the Prosecutor-General shall decline to prosecute if
there is no sufficient evidence to prosecute the matter.
IV. ADJUDICATION
The adjudication of corruption matters are dealt with by the Lower Courts and High Court of
Namibia.The High Court deals with the interpretation and application of the Anti-Corruption Act and
also hears matters on the constitutionality of any sections of the Act. The definition of corruption is
not so simple because it can take on many forms;however corruption is defined as the abuse of public
office for private gain,it may also be defined as wrongdoing by those in position of trust,therefore a
simplified definition of corruption is;Offering or acceptance of an advantage as an inducement or
reward for doing or not doing an act which amounts to abuse ofones official position whether in public
or a private body.
Gratification as defined in the Act refers to money or any gifts,loans,fees,rewards,commissions,
valuable security or property or interest in property of any description,whether movable or immovea-
ble;any office,dignity,employment, contract of employment,release,discharge or liquidation of any
loan,obligation or other liability,whether whole or in part;any forbearance to demand any money or
moneys worth or valuables thing;any right or privilege which is received in the performance ofofficial
duty. There is also a need for workshops on intensifying the understanding, application and the
interpretation of the Act by the courts.
V. CONFISCATION OF THE PROCEEDS OF CORRUPTION
The Anti-Corruption Act does not make provisions for the confiscation of the proceeds of corrup-
tion,but this is done under the Prevention ofOrganised Crime Act no 29 of2004 section 32(Confiscation
Order). The aim is to remove the proceeds so that the offender does not benefit from unlawfully
acquired proceeds.It serves as a deterrent to the offender and members of the society that corruption
does not pay at all.
VI. PREVENTATIVE M EASURES AGAINST CORRUPTION
Corruption is a threat to good governance, peace, political stability and socio-economic develop-
ment.It is also a threat to any positive progress,success,nation building,unity and national prosperity
therefore the Anti-Corruption Commission has adopted the following approach to prevent corruption
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at all costs. The Anti-Corruption Commission has adopted strategies to prevent corruption after
carefully studying and analysing existing policies and procedures at institutions, and the lack of
transparency and accountability at government institutions.The lack of proper policies,rules,regula-
tions and procedures are the root causes of corruption since it creates room for corruption to take
place. Formulating policies, procedures and regulations as an initiative of the Commission has seen
some decline in corruption at work places.
The Commission also embarked on public education which is aimed at sensitising the youth,
churches, schools, politicians, public office bearers, community leaders, the private sector and the
nation at large against the evils and the bad consequences of corruption so that they may feel free and
also feel obliged to report anysuspicions ofcorruption to the Commission without fear ofvictimisation.
The public play a very significant role because it exercises pressure on government to increase
accountability and transparency at public institutions and also to take necessary action against
corruption.The development of educative materials such as brochures and booklets have been done for
distribution to mostly schools and public and private institutions to read and understand the activities
ofthe Commission and also to sensitise the Nation at large as to the effects ofcorruption in the country.
There is therefore a positive outcome in that corruption is reported on a daily basis to the commission
because awareness has reached the majority of citizens, the business community, the youth and the
public sector.
A. M edia
The media is also used by the Commission to educate the nation. Seminars and workshops are
conducted with community leaders and churches. The church serves as a vehicle to reach out to
ordinary citizens, to raise awareness, sensitising people and instil moral values such as honesty,
integrity,transparency,stewardship,respect and justice through teaching,preaching and education of
their members and communities at large.
The free media in the country also contribute in fighting and preventing corruption due to the fact
that corrupt practices are published and read by the society and the involved people exposed.This has
a deterrent effect to future or potential corrupt public and private sector employees.The Commission
is relatively new and much still needs to be done to achieve its intended goal of a free of corruption
Nation.
B. Political Will
The President has launched a civic initiative, the Zero Tolerance for Corruption Campaign
(ZTFCC).He has targeted mismanagement of public funds,poor service delivery and corruption as key
government priorities, and directed the investigation of cases of alleged malfeasance. The Namibian
Government has shown its commitment to combating corruption by the creation of an Ad Hoc
M inisterial Committee assisted by a Technical Committee on the Promotion of Ethics and Combating
of Corruption in March 1997 for the purpose of developing legislative and administrative proposals for
a comprehensive ethics/anti-corruption regime in Namibia. Political will is also very crucial for
Namibia s anti-corruption efforts to be successful therefore politicians at all levels of government
strife to eliminate corruption and adopt necessary policies and procedures to promote accountability
and transparency in public institutions.
VII. DEFINITION OF CORRUPTION
Corruption is generally defined as an abuse of (public) office for private (personal) gain . It
includes:behaviour that may involve fraud,theft,misuse of position or authority or other acts that are
unacceptable to an organization and which may cause loss to the organization,its clients or the general
public;and dishonestly putting personal interests above those of the people and ideals one has pledged
to serve. Defining corruption is not so simple, because it can take on many forms.
A. Legal Corruption Definition of Namibia Anti-Corruption Act, 2003 (Act No 8 of 2003)
The Anti-Corruption Act, 2003 (Act No 8 of 2003) defines corrupt practice as any conduct
contemplated in Chapter 4 of the Act which Chapter deals with offences.In the Chapter 4 offences,the
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word corruptly is mostly used together with the word gratification . Corruptly ― the definition has
recently been declared unconstitutional and struck down. Corruptly will thus now bear its ordinary
grammatical meaning. Gratification has been broadly defined and includes, amongst others, gifts,
loans, fees, rewards, commissions, privileges, favours.
1. Penalty for Offences under Chapter 4:
Conviction leads to a fine not exceeding N$500,000 or to imprisonment for a term not exceeding 25
years, or to both (imprisonment and fine).
2. Prevalence of Corruption
Corruption is not really rife in Namibia.M any cases received by the Commission are not related to
corruption and they have to be referred either to the other institutions like Namibian Police,relevant
M inistries and the Ombudsman.
3. Statistics
Year Number of Cases Received Referred to PG Percentage
2006/2007 686 0 -
2007/2008 900 30 9%
2008/2009 928 93 9.28%
2009/2010 445 67 4%
2010/2011 297 55 2%
2011/2012 617 46 6.17%
4. Types of Corruption
Bribery:Rewards in cash/kind given to change the judgment or corrupt the conduct or influence
decision-making
Embezzlement:This involves theft of resources by persons entrusted with the authority and control
of such resources.
Abuse of power:This involves a public officer using his/her vested authority to improperly benefit
another public officer or entity or person.Note:Public officer is any officer who renders service to the
public
Conflict of Interest:Acquiring a position or commercial interest that is incompatible with one s
official role and duties for the purpose of illegal enrichment e.g. awarding a tender to a company in
which you have interest without declaring such interest and recusing yourself from the process.
Conflict of Interest may be seen as corruption if not disclosed.Often there is a debate on whether
gifts may be forms of corruption or not. The debate is based on our traditional values.
Fraud: Behavior that involve irregularities such as false statements, evasion, manipulation of
information and other illegal acts characterized by intentional deception.
Favoritism and nepotism:This is the assignment of appointments,services or resources according
to family ties, party affiliation, tribe, religion, and other preferential groupings.
Inside trading:Involves the use of information secured during the course of duty for personal gain
5. Administrative Corruption or M aladministration
Officers in most cases commit corruption as a result of:
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Lack of adherence to ethical standard resulting in mismanagement of offices
Lack of code of conduct, policies and regulation or/and non-adherence thereof
Inconsistency in applying rules
Negligence, delay in execution of functions
Ignoring the principle of good corporate governance
Unnecessary travel adding to claim S&T.
Official time used to run personal errands.
Vehicle abuse: Research has found that about 20-30% of the cost of providing company
vehicles reflects non-business use.
6. Factors/Causes Leading to Corruption
Opportunity:People get involved in corruption when systems don t work well and they need a way
to get their things done regardless of the procedure and laws.
Little chance of getting caught: A lack of accountability comes primarily from a lack of
transparency (No need to explain what, why and how), and weak enforcement (law agencies don t
impose sanctions on power holders who have violated their public duties).
Bad incentives:e.g.a clerk not earning enough to live on,or not being sure that he will have a job
tomorrow.
Certain attitudes or circumstances make average people disregard the law.People may try to get
around laws of a government theyconsider illegitimate.Povertyor scarcityofgoods(such as medicine)
may also push people to live outside the law.
Culture: Corruption is a matter of culture A culture where a small reward is always paid for
service rendered, special honor for the Chiefs. Can also be practiced in business arena.
Range of Discretion:If one person has too much power to exercise discretion,if there is no one to
answer to, having discretion to decide how rules should be applied, it may be abused.
7. Corrosive Effects
Some factors leading to corruption have many corrosive effects. Such factors include a shortage of
essential services such as schools and hospitals; insufficient public facilities; a decline in economic
development;a high unemployment rate;poverty and inequality;the facilitation of organized crime
such as drugs,arms trade and money laundering;the violation of human rights;the undermining of the
rule of law and representative democracy;an increase in political instability;the enrichment of a few
at the expense of the majority. Greed;to wish to have everything.
VIII. CASE STUDIES
A. The State versus Sackey Namugongo 2006
1. Background
The accused was a Deputy Director in the Ministry of Environment and Tourism responsible for the
gambling house licences.There was a moratorium placed on the issuance of gambling licences during
2006. The accused disregarded this moratorium and continued to issue fake permits to authorise
gambling machine owners to use the gambling machine until the moratorium is lifted.He received cash
totalling to N$ 332 500.00.
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2. Court Proceedings
The accused was arrested in 2007 and charged on 42 counts of corruption, fraud, forgery and
uttering. He was granted bail of N$20 000.00.
3. Trial
The trial took about 4 years and finally the accused was convicted on 19 counts of corruption. He
was sentenced to 10 years imprisonment,of which 2 years were suspended for 5 years on condition that
he is not convicted of corruption during the period of suspension.He appealed against the sentence to
the Supreme Court while in prison but the appeal failed. The accused started his prison term in 2010.
The rest of the counts could not be proven as there was insufficient evidence.The accused was released
from prison during August 2013 on a Presidential Pardon.
B. State versus Armugham Thambapilai 2005
1. Background
The accused is a prominent lawyer in the northern town of Ondangwa,Oshana region in Namibia.
The accused is a practising lawyer who has admission to the lower courts and the High Courts of
Namibia. He regularly acted on behalf of his clients to lodge accident benefit claims from the M otor
Vehicle Accident Fund (M VA)of Namibia.The accused lodged accident benefit claims from the M otor
Vehicle Accident Fund between 2000 and 2005. The M otor Vehicle Accident Fund is mandated a
statutory body mandated to compensate victims of motor vehicle accidents in Namibia. The accused
after receiving instructions from his clients;falsified the information and submitted fraudulent claims
to the M otor Vehicle Accident Fund. Numerous fraudulent claims were paid out by the fund.
Sometimes towards the end of 2005 a whistle blower informed the Commercial Crime Unit that the
accused was busy with corrupt activities at his law firm by presenting fraudulent information to the
M VA Fund.The accused managed to lodge claims to the value ofabout 4 million Namibia dollars from
the fund.The falsification of the information was mostly aimed at getting more financial benefit from
the Fund,for example a certain claimant was injured in a car accident and due to this accident he lost
his income.This man never worked in his life which means he never had an income as a business man.
The M VA Fund pays for loss of income. This details were misrepresented and a total of 2,8 Million
Namibia Dollars were paid to the lawyer and his client. An investigation was lounged, It was estab-
lished that the claimant was not a businessman.It was further found that the accident details submitted
to the fund to support the claim were not real,but falsified.An accident truly happened but the details
of the correct accident were never revealed to the M VA Fund. The M VA Fund did not suspect any
wrongdoing and accepted the claim in good faith. After the conclusion ofthe investigation,the lawyer
together with his clients were indicted for 16 counts of fraud,9 counts of forgery and uttering,1 count
of theft.
2. Trial
The trial started in 2007 and the accused pleaded not guilty to all the charges he faces. The State
presented its case in the High court by calling witnesses and presenting the falsified claims information
to the court.The accused also testified in his own defence,and put the blame on his clients saying that
he only acted upon instructions from his clients and if there are any misrepresentations than it should
be from his clients and not him,he stated to the court.At the end of the trial the accused lawyer asked
for the discharged of his client arguing that the state witnesses contradicted themselves and that the
State did not have a case against his client. That request was not granted by the presiding Judge.The
submissions were already done, and now it is up to the Judge to pronounce his findings. The case is
postponed to December 2013.
C. The State versus Veronika Kituna Thomas and Others 2010
1. Background
The accused was a Registry Clerk/Data Typist in the Ministry of Finance,Inland Revenue respon-
sible for receiving Income Tax Returns, capturing of Employers Tax Reconciliation, capturing of
PAYE 5 (Pay as You Earn)certificate. The allegation is that the accused stole cheques paid over by
Companies to the M inistry of Finance as employee tax remittance,and value added tax.The accused
then handed the cheques to a middle man who in return handed the cheques to a business man. The
business man deposited the cheques into his business account with a similar name of that of the
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M inistry of Finance (M Finance).The total amount of the cheques were N$ 3,329,489.64.
2. Trial Proceedings
The businessman was arrested during M arch 2010 and was released on bail of N$30,000.00. The
main accused and the middleman were indicted before the High Court on 10 charges of corruption
during November 2010.
The main accused pleaded guilty in terms of section 112(2) of Act 51 of 1977, on 5 counts of
corruption and was consequently convicted on 10 February 2012 and sentenced on 27 March 2012 to 12
years imprisonment of which 4 years were suspended for a period of 5 years on condition that accused
is not convicted of theft or corruption committed during the period of suspension;however she lodged
an application during April 2012 for leave to appeal the sentence imposed against her, which is still
pending in the High court.She is currently serving her jail sentence in Walvisbay Prison in Namibia.
The middleman and the businessman pleaded not guilty to all 10 charges of corruption and the
matter is pending before the High court.
D. The State versus Gerry Munyama 2005
1. Background
The accused was a Director General, the chief executive officer and a member of the board of
Namibian Broadcasting Corporation (NBC)established in line with the Namibian Broadcasting Act,
Act 9 of 1991,in terms of this act the NBC is a juristic person and as government agency;is responsible
for provide information and news to the public and updating in the international events.
The accused was having exercises control and supervision over officers and employees of NBC and
performs the duties assigned to him by the NBC board.During October 2005,the accused forged a NBC
board resolution and opened a new bank account at Standard Bank Namibia which authorized him to
be a sole signatory power on the account and paid NBC cheques to the amount of N$ 480,000-00 into
the fake bank account and made several withdrawals and pretending that he settled the debts of NBC
by paying creditors. Two cheques totalling N$ 280,000-00 were deposited into the bank account of
Cooling s CC;a CC business which was responsible ofinstalling air conditions at NBC while the CC was
already paid for the service rendered to NBC.
2. Court Proceedings
The accused was arrested during October 2005 and charged on counts of corruption,fraud,forgery
and uttering and theft. He was granted bail of N$20.000.00.
3. Trial
The trial took about 5 years and finally the accused was convicted on all above counts. He was
sentenced to 10 years imprisonment,of which 4 years were suspended for 5 years on condition that he
is not convicted of corruption during the period of suspension.He appealed against the sentence to the
Supreme Court while in prison and succeeds.The accused started his prison term in October 2010 and
was released from prison during October 2012.
IX. CONCLUSION
Governments should regularly come together to revisit the effectiveness of the current laws to fight
corruption and also to seek new ideas in preventing corruption.
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